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3M deal and privacy case ‘punt’ show the promise and complexity of spatial technology, attorney says

RICHMOND, VA. (9/13/10) - The Third Circuit Court of Appeals' inability to make a clear-cut decision in a privacy case involving the location data of telecommunications customers points to the murkiness of the emerging privacy, liability and national-security concerns linked to geo-location devices and applications, said LeClairRyan's Kevin D. Pomfret, an attorney whose practice focuses on the rapidly developing fields of spatial law and technology.

"Forward-looking businesses are placing their bets on the long-term growth and evolution of location-based technologies, as 3M Co.'s $230 million acquisition of a people-tracking firm earlier this month amply illustrates," noted Pomfret, a Richmond-based partner in LeClairRyan and executive director of the Centre for Spatial Law and Policy. "In the United States, however, we are only beginning to discuss what a reasonable expectation of privacy actually means from a spatial technology standpoint. And that means companies that invest in and make use of this technology will, for the time being, be forced to operate in an environment that is rife with uncertainty."

Unfortunately, in its Sept. 8 ruling, the Third Circuit Court of Appeals missed an important opportunity to bring some clarification on these matters, the attorney noted. "The court ruled that a judge may, but is not required to, ask law enforcement to show probable cause for a warrant before asking a telecommunications company to turn over historical location data on its customers," he explained. "This was a non-decision that, in effect, punted on a very important geo-location privacy case. It provided little help to lower-court judges, law enforcement or the growing number of companies that are collecting this information on a regular basis."

Indeed, companies continue to bet on the long-term growth of spatial technology. Most people associate the name 3M, for example, with prosaic fixtures of the office environment like Post It notes or Scotch Tape. But with its Sept. 1 announcement that it was acquiring the Israeli firm Attenti Holdings SA-which makes people-tracking ankle bracelets and other devices-3M became yet another major investor in spatial technology, Pomfret noted.

Ultimately, the attorney said, this trend will encompass much more than GPS-enabled social-networking tools like Facebook Places or FourSquare, or visualization and navigation-related services such as Google Earth or MapQuest. And yet, even relatively early entries like these have already been dogged by questions. "Within hours of its launch, Facebook Places drew loud criticism for its alleged failure to deal with privacy concerns," Pomfret noted, "and Google's geo-location tools also have also drawn plenty of criticism."

Residents of Long Island, N.Y., accused government agencies of acting like "Big Brother" by using Google Earth to find illegally constructed swimming pools in people's backyards, and officials in Germany are now considering a crackdown on Google Street View, which allows users of Google Maps to, as Google puts it, zoom "all the way in [until] you find yourself virtually standing on the street."

These examples illustrate how societies across the globe are now grappling with the impact of location-based technologies, said Pomfret, who writes about these issues on his blog, Spatial Law and Policy (http://www.spatiallaw.blogspot.com). "As these technologies become more ubiquitous, the complexity of the questions associated with them is only going to increase," he noted. "Software is already on the drawing board that will allow people to predict where you are likely to go in the future based upon where you have been in the past. In terms of both privacy law and liability this is uncharted territory."

And in a world where, in minutes, an iPhone user can capture a video, broadcast it on YouTube, notify friends about the video on Facebook and Twitter-and even post a link to a GPS-enabled digital map of the site where the video was shot-the national security implications are obvious, Pomfret said. "You can bet that intelligence agencies across the globe are closely looking at these issues," he said.

While the aforementioned "punt" by the Third Circuit was of little help, it is clear that legislatures and courts will have much to say on spatial technology, Pomfret said. In July, U.S. Rep. Bobby L. Rush introduced the first broad-based privacy-protection bill that would regulate the collection, use and distribution of consumers' location-based data. This does not mean the geo-location trend will be shaped by the law alone. "Craigslist's recent decision to pull its adults-only section reveals the central role that public opinion can and will play," Pomfret said. "That decision does not appear to have been prompted by any direct legal action. Rather, it came after increased media reports on the use of this sub-section for prostitution and human trafficking."

Spatial technology firms and users will continue to face similar pressure, he added. "In response to the public outrage, the building department of Riverhead, N.Y., pledged to stop using Google Earth to hunt for illegal swimming pools, though it had the legal right to continue to do so," Pomfret said. "It certainly behooves companies to consider not just what state and federal courts have said or are likely to say, but also how these issues might play out in the court of public opinion."

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